Wurridjal & Anor v Commonwealth of Australia

[2007] HCATrans 745

[2007] HCATrans 745

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M122 of 2007

B e t w e e n -

REGGIE WURRIDJAL

First Plaintiff

BAWINANGA ABORIGINAL CORPORATION

Second Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

Defendant

HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 7 DECEMBER 2007, AT 9.32 AM

Copyright in the High Court of Australia

MR R. MERKEL, QC:   If your Honour pleases, I appear with my learned friend, MS K.L. WALKER for the plaintiff.  (instructed by Holding Redlich)

MR H.C. BURMESTER, QC:   Your Honour, I appear for the  defendant.  (instructed by Australian Government Solicitor - Barton)

HIS HONOUR:   What is the position, Mr Merkel?

MR MERKEL:   The position, your Honour, is that the parties have reached agreement on a pleading to which my learned friend can demur and they are agreeable that the matter, in those circumstances, can proceed, if the Court is able to accommodate us, on the foreshadowed date of 4 March, your Honour.

HIS HONOUR:   In the week commencing was the week towards which we were working.

MR MERKEL:   Yes.

HIS HONOUR:   The proposals have not yet been fixed, but that is what we are working towards.

MR MERKEL:   There are a few matters I need to briefly mention.

HIS HONOUR:   Just before you go on to those matters, Mr Merkel, I expressed some views last time about demurrer which need to be at least corrected in part.  I said to Mr Burmester that I thought there would be difficulty in attempting to plead after a demurrer had been determined.  That is not consistent with what is said by Mr Justice Dixon and Mr Justice Williams in King Gee Clothing Company Proprietary Limited v The Commonwealth 71 CLR 184 particularly at 200 to the same effect, Mr Justice Williams at 209. Mr Justice Dixon says at 200:

It does not appear that the defendants have pleaded as well as demurred, but, if the defendants wish to plead, I should see no objection to allowing them to do so.  But, at the same time, the plaintiffs should have leave, if they desire it, to amend as they may be advised.

This was at the end of a demurrer having been overruled.  I had expressed an impressionistic view that that was not a course that was open.  The parties, if it ever got to that no doubt could argue about whether it was a course that is open.  I wanted to at least point out that there are those statements in the authorities that suggest that my first impression was, as is so often the case, wrong.

MR MERKEL:   I will not make any comment about that, your Honour.

HIS HONOUR:   No, I would not if I were you, Mr Merkel.  I really would not.

MR MERKEL:   Your Honour, that is very helpful.  We are in a situation now where we do not have difficulty with a demurrer and pleading.  Indeed, it might be helpful if we understood what the Commonwealth did wish to put in issue were the matter to go further if the demurrer was not successful.  What we had in mind, your Honour, was proposing certain directions.  We are in a position to finalise the statement of claim today.  There are certain matters our learned friends put to us last night which we have adopted and we are grateful to them for those suggestions.

HIS HONOUR:   So the final form is not yet to hand but will be available within the next two or three days.

MR MERKEL:   We can file it today, your Honour.  The only omission at this stage is that one of the schedules is the fee simple grant and we only have the front page.  We understand that the Commonwealth have some other pages but if we can file it on the basis that when that document is complete it will be substituted in full for the current schedule, otherwise we can file the statement of claim today.  We do wish to add the second plaintiff and I can hand up to your Honour, if I might, the second plaintiff’s consent which is added.

HIS HONOUR:   Yes, please.

MR MERKEL:   Again I do not understand.  This is opposed by my learned friend.

HIS HONOUR:   Yes.  The consent should remain on the file, of course.

MR MERKEL:   What we would seek is orders that Joy Garlbin be added as the second plaintiff.

HIS HONOUR:   Yes, you need to amend the name of the first plaintiff.

MR MERKEL:   We do not need that.

HIS HONOUR:   You do not need that?

MR MERKEL:   Apparently the spelling that was originally there is the correct spelling, so we do not need to amend the name of the first plaintiff.

HIS HONOUR:   Right.

MR MERKEL:   We have leave to file a further amended statement of claim today.

HIS HONOUR:   Yes, could I suggest that I extend that leave, or the time for compliance with that leave, to say, Tuesday 4.00 pm so that you have one go at it?  That will give you whatever is left in today, but more importantly, Monday to get hold of the full version of the grant so that we have only the one version of the document on the file, otherwise capacity for confusion is bound.

MR MERKEL:   Yes, we will do that, your Honour.  We are grateful if that could be done by 4.00 pm Tuesday.  There is one matter I do need to foreshadow to your Honour.  There is an issue which has been agitated between ourselves and the Commonwealth.  What is apparent from instructions we have is that, for reasons which are not readily apparent, tenancies and licences have been created in Maningrida and, we believe, probably elsewhere by arrangements with the Northern Land Council, traditional owners and the Land Trust and the formalities of section 19 may not have been complied with.

What we have done is we have pleaded our case thus far on the basis that section 19 had not been complied with but payments had been made and that these constitute a form of property and there is an argument about whether the requirements of section 19, if not adhered to, make what is granted invalid and therefore no money payable and therefore no property.

The only reason I mention it to your Honour is twofold, one is that we are not ourselves privy to all of the documents within the Northern Land Council that may in fact disclose that section 19 was complied with and we are in the process of trying to get access to those documents and, secondly, because the Commonwealth lease does not commence till 15 February, it is possible that that situation may be rectified.

We have discussed this with our learned friends and we foreshadow that that particular pleading that pleads those matters were granted outside of section 19 may be altered if the fact changes but we do not see that as affecting the demurrer or the progress of the matter.  I just thought I should foreshadow that, your Honour, that it is not a major matter but it is a matter that may require rectification, but we are in agreement about the steps that would be required for that to occur and it seems that that will occur consensually if that fact changes.

HIS HONOUR:   I will not say anything about it.  If it does not matter, it does not matter.  If it matters, we will discover how and why it matters.  What will not be helpful will be late amendments to documents altering demurrer books if those amendments are unnecessary.  If they are necessary, of course, they have got to be made, so be it, but that is perhaps all I need to say.

The other point that I had proposed to raise today is that it would seem to me to be premature to set down a demurrer until demurrer is filed, and it occurred to me that a way of dealing with that minor practical problem was to indicate that once the amended pleading goes on, if the Commonwealth demurs, then if the parties were to submit agreed forms of order which would, one, direct that the demurrer be set down for hearing before a Full Court, two, set out a timetable for (a) preparation of a demurrer book, (b) submissions, submissions in answer and submissions in reply, and set out a timetable that had the last step, that is, the reply submissions, being filed and served no later than close of business Friday, 22 February, then it would be possible to make orders without having the parties go to the expense of being represented.

I assume that the parties between them will be able to work out a satisfactory timetable with that end date as the outer limit.  It will be important to have the papers and submissions finished by then before the March sittings commences.  That would leave today making directions about the joinder of a party, leave to file and serve an amended statement of claim.  I would also give directions requiring filing and serving of an amended writ with the new party so that we keep the originating process in order.  Then other than dealing with costs, what else would we need to deal with, Mr Merkel?  I would propose simply to reserve then, but is there anything else we would need to pick up or deal with now?

MR MERKEL:   I have had discussions with my learned friend.  I think we are both in agreement that it would be appropriate, given the complexity of some of the issues, to request that submissions be extended to no more than 40 pages.

HIS HONOUR:   Why?  Yes, I know you say the issues are complex.  Yes, I know you say that therefore you need more paper, but it is the bitter experience of recent times that the submissions expand to fill the page limit given and there is not that refinement which must attend written submissions and the submissions simply become bloated.  Now, why?

MR MERKEL:   I think for our part, your Honour, the complexity arises in two ways.  First, there is the constitutional question, which is discrete from the facts of the case and, secondly, there is the particular challenge to the 51(xxxi) aspects of the case that are put at several levels.  One is the property of the Arnhem Land Trust, the next is the property of the traditional owners as a group, the third is the property of the individuals and the fourth is the property of Bawinanga, so each of them has to be addressed separately.  Whilst there is some overlap, each does raise some different issues and also some unusual issues ‑ ‑ ‑

HIS HONOUR:   Arnhem Land Trust is not a party?

MR MERKEL:   They have been given notice, your Honour, and we have not had an indication as to whether they wish to appear or be heard or not.

HIS HONOUR:   Not my question, Mr Merkel.  Arnhem Land Trust is not a party?

MR MERKEL:   No, they are not a party.

HIS HONOUR:   They make no claim?

MR MERKEL:   They make no claim but we say that the special interest that the traditional owners have is derivative from the Land Trust.  So if the Land Trust does not wish to be heard, it does not deny the traditional owners standing.

HIS HONOUR:   They may have their claim.  I am not suggesting ‑ ‑ ‑

MR MERKEL:   No, standing.

HIS HONOUR:   They have standing to what?

MR MERKEL:   They have standing, so we contend we do not understand it is contested by the Commonwealth, to challenge the loss of property that would flow to the Arnhem Land Trust which would affect derivatively their property which is derived entirely from the Land Trust property so that if ‑ ‑ ‑

HIS HONOUR:   That is a matter about which I expressed no view.  I simply note that Arnhem Land Trust is not a party.  It makes no claim.

MR MERKEL:   Yes.

HIS HONOUR:   Now, what consequences flow will be a matter for some argument, no doubt, but at the moment the claims that are made are the claims of the two natural persons who stand in the relationship, it is alleged, described in the statement of claim with the other entities that have connection with the subject matter and you have the corporate end.  There we are.  That is the litigation as it is framed.

MR MERKEL:   That is so, your Honour.

HIS HONOUR:   So why do we need – what do you say – 40 pages, is it?

MR MERKEL:   Your Honour, I am only half of the request.  My learned friend, Mr Burmester, is the other half, but we will be ‑ ‑ ‑

HIS HONOUR:   You have just been verballed, Mr Burmester, but we will come to you in a moment.

MR MERKEL:   It is important, your Honour, that we do not understand the Commonwealth to challenge our standing in respect of the claims of invalidity in relation to the Arnhem Land Trust.  If there were an issue about that, that would be important, but we do propose to put submissions as to why the law is invalid in relation to the Land Trust’s property.  They are the issues, your Honour, and I should say that the laws are complex, if one puts it gently, but are unique and novel in most respects and, therefore, that means that they do not fit comfortably within any of the prior authorities and there are numerous issues. 

We do not say, your Honour, that because it would be no more than 40 pages the space will fill up to 40 pages automatically but we just were concerned about having that latitude.  But I understood my learned friend, who will see the case from the other half of the perspective of issues, is also of the view that that was be appropriate, but we are in the Court’s hands as to what might occur in respect of the length.  That is the first matter.

The second matter, your Honour, is that because of certain time problems that we might have and other parties might have in January, we were going to ask if your Honour would be disposed to allow that last step, which would finish on Friday the 22nd, to be able to be carried out - which would be our reply – on, say, Wednesday the 27th‑ ‑ ‑

HIS HONOUR:   No.

MR MERKEL:   Then we will fit within those time parameters, your Honour.

HIS HONOUR:   Yes.

MR MERKEL:   I think I cannot say anything else.

HIS HONOUR:   Now, what is your estimate of duration of oral hearing for a demurrer?

MR MERKEL:   We thought it would take three days, your Honour.

HIS HONOUR:   You say it is a three day case, do you?  That is on what assumption as to number of represented parties and interveners?

MR MERKEL:   At the moment we believe the Northern Territory will intervene but we have not been formally notified of that.  There has been recently a change of government and we have not heard officially as to whether they will intervene but we would say there is a likelihood.  We have not had a positive response from anyone else, so it is uncertain whether any of the States will intervene.  We expect not.  We do not know what the position of the Northern Land Council and the Arnhem Land Trust is.  Again, there has been a recent changing of the guard at the Northern Land Council.  We are not quite sure what their position would be. 

There would be no doubt they would have standing to be a participant.  I would be surprised if they did not but we just simply do not know what their position is.  But, again, we think the bulk of the time will be taken up by the Commonwealth and ourselves and the three days, your Honour, was something I think Mr Burmester and I felt was appropriate as a reasonable estimate from the position of both sides.  I think they are the matters we wish to put, your Honour.

HIS HONOUR:   Yes, Mr Burmester.

MR BURMESTER:   Thank you, your Honour.  Thank you for the clarification about the question of pleading.  It is the Commonwealth’s intention to demur and plead.  We think it is desirable to have that document before the Court by the time the hearing on the demurrer takes place, although it is not directly relevant to that and it may be, therefore, we can put in the demurrer, which we intend to cover, the whole of the further amended statement of claim and indicate that the pleading will be filed before the hearing of the demurrer but, as I said, they are in a sense two separate matters but in order to protect the Commonwealth’s interest we think it desirable to put on a pleading as well as a demurrer.

Your Honour, we have worked hard with the plaintiffs to get the statement of claim in a form where we said that we can demur to it but I would not want your Honour to think that the result of the demurrer is that the case then only raises some discrete constitutional issues such as the application of Teori Tau and so on. 

The reason that my friend and I considered it a three‑day case and sought 40 pages for submissions reflects the fact that in order to get to the constitutional issues and to properly appreciate the underlying property interests that may or may not exist on which the constitutional principles may operate, there are some considerable complexities such as the nature of the grant of the fee simple under the Land Rights Act and the rights that the traditional owner has as a result of that grant.  There are the specific rights given to traditional owners under section 71 of the Land Rights Act.  There are native title rights claimed.

HIS HONOUR:   Claimed but not yet determined?

MR BURMESTER:   Claimed but not yet determined and that raises whether native title exists, its relationship with the Land Rights Act and so on.  So that is another complex property issue.  Then there is the nature of the Bawinanga Corporation’s interests outside section 19 and in order to determine the constitutional issues, unless the case happened to be decided on some narrower ground, it is in a sense a major property case.  It is for that reason, your Honour, that we say that there are considerable complexities still there even proceeding by way of demurrer. 

We have done our best in the amended statement of claim to clarify the nature of the property interests said to be relied upon and we think that is in a satisfactory form but, your Honour, I would not want you to think that this is not still a complex case and it is for that reason that we thought three days would probably be necessary and that 40 pages would not be unduly long in order to deal adequately with those underlying property issues as well as the constitutional issues.

HIS HONOUR:   On what assumption is three days fixed, Mr Burmester, so far as parties and interveners are concerned?

MR BURMESTER:   Your Honour, it was my assumption that probably the Northern Territory would be there but there would not necessarily be other parties but that it is for the two principal parties, the plaintiffs and defendants, there is still sufficient complexity to require that period of time.

HIS HONOUR:   If, contrary to expectation, the case were to attract intervention or application for leave to intervene from either other polities or other parties, is that likely to affect the three-day estimate, or do you think the three-day estimate has sufficient flexibility about it to accommodate most foreseeable eventualities about intervention?

MR BURMESTER:   Yes, I think it does, your Honour.  If there were some interveners, they should be able to be accommodated within that three days.  It is not as if they would be raising, I would not have thought, entirely new or separate issues.

HIS HONOUR:   Now, 40 pages for each principal submission, what about reply?  I know it is not your question, Mr Burmester, but I would be interested in your attitude to it.  Do you express any view?

MR BURMESTER:   Your Honour, no.  I suppose by 40 pages we were thinking principally of principal submissions.  The plaintiff may want to have a significant reply because some of the material the Commonwealth puts in, dealing particularly with the nature of the property rights, will be new so they made need to divide their submissions.  We would not object if they had 30 pages principal submissions and 20 in reply and we were confined to 40.  I think that would be satisfactory from our point of view.  I do not object if there are some additional pages in reply, your Honour.

HIS HONOUR:   As I say, the difficulty is that submissions are bloating at the moment.  There is not that refinement of thought in the submissions that there should be.  That is of simply little assistance to us but there we are. 

Mr Burmester, if I were to give directions adding Ms Garlbin as a plaintiff and directing consequential amendments, give leave to the plaintiff to file and serve an amended statement of claim and an amended writ of summons by 4.00 pm on 11 December and reserve costs and leave over for subsequent making directions dealing with, one, setting down the demurrer, two, giving directions about timetables and length of submissions in accordance with indications I will give in a minute, what else do you say I would need to do this morning?

MR BURMESTER:   Your Honour, that is probably sufficient for this morning.  Just in terms of timetable, I know you have indicated quite strongly that you think the documents should close on 24 February ‑ ‑ ‑

HIS HONOUR:   Shortly, Mr Burmester.

MR BURMESTER:   Your Honour, can I suggest perhaps Monday, 25 February as the final date for reply.

HIS HONOUR:   It is like conducting an auction, Mr Burmester.  Do you want me to go in and consult the vendor at this point?  What, 12 noon on the Monday?

MR BURMESTER:   I think, your Honour, given, as I said, the complexity of the issues and the time needed, that would be appropriate.

HIS HONOUR:   Can I say this to all counsel in all seriousness.  The more you speak of the complexity of the matter and the difficulty of the issues that are raised the more I am minded to insist upon the papers being available to the members of the Court for the weekend before the sittings begin.  The weekend before sittings begin is a time of some value to us.  I know that is crushing the parties in their time but there we are.  I am minded to insist on the Friday at 4.00 pm Melbourne time so that the documents are available at the Registry for distribution to those members of the Court who

will be wanting to read them over the weekend before the deluge begins on the sitting on February/March sittings.

MR BURMESTER:   I have no further suggestions in terms of today’s orders.

HIS HONOUR:   Yes, thank you, Mr Burmester.  Mr Merkel, I will inform the Chief Justice that it is the estimate of both parties that three days should be allowed for the case.  I will make directions if the parties submit a timetable ending on that Friday at 4.00 pm that permit the parties in their principal submissions to have 40 pages maximum.  It would seem to me that a reply of, say, 10 pages is appropriate.  Do you wish to be heard against that?

MR MERKEL:   No, your Honour.

HIS HONOUR:   You will need in your directions that you submit to me to provide for the preparation and filing of a demurrer book with appropriate numbers of copies so that the submissions can make the appropriate references to the demurrer book rather than some other form of reference.  So the demurrer book first, the submissions timetable, a direction about length and, as I say, all capped by the directions directing the demurrer be set down for argument before a Full Court.  That I think will be the frame of the separate orders that the parties should agree on and submit once we have got to a demurrer.

If for today, however, I were to make orders in these terms:

1.        Order that Joy Garlbin be added as second plaintiff in the action and direct that the writ of summons and title of the proceeding be amended accordingly.

2.        Grant leave to the plaintiffs to file and serve an amended statement of claim and an amended writ of summons on or before 4.00 pm 11 December 2007.

3.        Reserve liberty to apply and reserve costs. 

Is there anything further from your side of the record you would want today, Mr Merkel?

MR MERKEL:   No, your Honour.

HIS HONOUR:   MrBurmester, is there anything more you want from your side of the record than that?

MR BURMESTER:   No, your Honour.

HIS HONOUR:   You will notice, Mr Burmester, that in the directions made and foreshadowed there is nothing said about time by which the Commonwealth is to put on its pleading as distinct from its demurrer.  I give no direction about that.  That will be in part a matter for your side of the record.  The advantage of having the pleading on early is evident.  I know that “early” is a relative term and masks what is possibly a very considerable task at your end of the record, I just do not know, but there would be great advantage if the Commonwealth could have its pleading, if any, on early.  More than that I cannot and do not say.

MR BURMESTER:   Yes, your Honour.  Your remarks are noted.  Thank you very much.

HIS HONOUR:   I will make directions in those terms.  If the parties could be good enough to submit a minute of the anticipated directions no later than – I was going to say Thursday next week if that can be done, but certainly no later than Friday next week, that would be of assistance and it would also perhaps keep the minds of the parties focused.

AT 10.49 AM THE MATTER WAS CONCLUDED